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Bowie v. a R Constr. Co.

Court of Appeals of Virginia
Jun 21, 1994
Record No. 0055-94-4 (Va. Ct. App. Jun. 21, 1994)

Opinion

Record No. 0055-94-4

Decided: June 21, 1994

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Affirmed.

(Bruce K. Billman; Rice, Stallknecht Billman, on brief), for appellant.

(P. Dawn Bishop; Sands, Anderson, Marks Miller, on brief), for appellees.

Present: Judges Barrow, Koontz and Bray


MEMORANDUM OPINION

Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.


Russell L. Bowie ("claimant") contends that the Workers' Compensation Commission erred in rejecting his August 26, 1993 change in condition application on the basis that his present average weekly wage did not exceed $240.00 per week, the wage which was offered by A R Construction Company ("employer") in a light duty position that was unjustifiably refused by claimant. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the commission's decision. Rule 5A:27.

In determining claimant's entitlement to reinstatement of temporary partial disability benefits, the commission reviewed claimant's earnings for the period from May 7, 1993 to October 8, 1993, and computed his average weekly wage actually earned during this period. Claimant was earning $6.10 per hour as of August 26, 1993, which was $.10 per hour more than the wage offered by employer in the light duty position. However, his wage records for the period from May 7, 1993 to October 8, 1993 showed that the average weekly wage he actually earned did not equal or exceed the average weekly earnings he could have obtained if he had accepted the light duty position. Based upon this evidence, the commission held that claimant was not entitled to a reinstatement of disability benefits.

"It was the duty of the Commission to make the best possible estimate of . . . impairments of earnings from the evidence adduced at the hearing, and to determine the average weekly wage . . . ." Pilot Freight Carriers, Inc. v. Reeves, 1 Va. App. 435, 441, 339 S.E.2d 570, 573 (1986). "This is a question of fact to be determined by the Commission which, if based on credible evidence, will not be disturbed on appeal." Id. "Thus, if credible evidence supports the commission's findings regarding the claimant's average weekly wage, we must uphold those findings." Chesapeake Bay Seafood House v. Clements, 14 Va. App. 143, 146, 415 S.E.2d 864, 866 (1992).

The commission's calculation of claimant's average weekly wage was based upon his earnings for the five month period during which he worked up to the date of the hearing. By using all of this wage information, the commission was able to compare the average weekly wage actually earned by claimant with the average weekly wage he could have earned if he had not unjustifiably refused the light duty position offered by employer. We find that it was reasonable for the commission to use this method of computation in determining whether to reinstate temporary partial disability benefits. The wage information relied upon by the commission provides credible evidence to support its method of determining claimant's entitlement to temporary partial disability benefits. Accordingly, we cannot say as a matter of law that the commission erred in denying claimant's change in condition application.

For the reasons stated, we affirm the commission's decision.

Affirmed.


Summaries of

Bowie v. a R Constr. Co.

Court of Appeals of Virginia
Jun 21, 1994
Record No. 0055-94-4 (Va. Ct. App. Jun. 21, 1994)
Case details for

Bowie v. a R Constr. Co.

Case Details

Full title:RUSSELL L. BOWIE v. A R CONSTRUCTION COMPANY and NORTHERN INSURANCE…

Court:Court of Appeals of Virginia

Date published: Jun 21, 1994

Citations

Record No. 0055-94-4 (Va. Ct. App. Jun. 21, 1994)